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E.D.Tenn.: Defendant's belief it was futile to resist search helped show search invalid

By John Wesley Hall, Jr.

The government failed to prove that defendant's consent was valid. He testified that he consented because he believed it was futile to refuse, and this was not rebutted. United States v. Moore, 2009 U.S. Dist. LEXIS 5259 (E.D. Tenn. January 23, 2009): The Court finds that though defendant expressly consented to a search of his person, the government did not meet its burden of showing that this consent was freely and voluntarily given. Defendant testified that when Officer Wallace asked defendant if he could search his person, though defendant did not want to be searched, he felt that Officer Wallace "was going to do it regardless." [Tr. at 75.] On cross-examination, defendant elaborated in response to questions from the Assistant United States Attorney ("AUSA"): AUSA: You are aware of what you can and can't do, when it comes to officers with the KPD, aren:t you? Defendant: Yes...continue to full post

Full post as published by Fourth Amendment on January 29, 2009 (boomark / email).